When the “Hague Court” recently announced that it had “jurisdiction” over Philippines’ arbitral claims against China, many reported the decision as a victory for the Philippines and as a triumph of the “rule of law.” I beg to differ.
On the contrary, the Court has muddled, not upheld, international law, and by trivializing the states’ duty to negotiate in good faith – as enshrined in the U.N. charter, stipulate in the UNCLOS, and specifically agreed to between the parties – has greatly damaged the prospect for peace, cooperation, and a final resolution of the disputes.
China’s 9-Dashed Line
By far the most serious and important of the Philippines’ claims are allegations that China has no historic rights to the S. China Sea under the UNCLOS – more specifically: 1.) China is not entitled to maritime rights beyond the sui generis rights provided under the UNCLOS, and 2.) China’s historical “9-dashed” line contravenes the UNCLOS.
The Chinese side has refused to participate on the ground that Article 298 guarantees signatories the right to opt out broadly forced arbitration over “disputes … involving historical bays and titles,” and China had explicitly opted out. It would be an “abuse of process” to compel participate in these proceedings.
The Court still upheld jurisdiction anyways, with the qualification that it will make its ultimate decision based on assessment of China’s “historic title” on the merits.
Given that the Court had no power to arbitrate over territorial titles, the Court may feel tempted to adjudicate over China’s potential titles to historic waters. But it should think twice.
The notion of “historic water” has actually been raised several times since the first United Nations Conference on the Law of the Sea. In 1962, the Secretariat even produced a detailed study on the topic. By the 19th session (1967), negotiators decided to drop efforts to codify the regime due to its complexity, “considerable scope,” and “political problems.”
The I.C.J. has similarly observed that while the notion of “historic waters” is firmly rooted in general International Law, each case is unique and the concept has yet to submit to a common precise legal definition.
By stretching now to arbitrate issues that had escaped the grasp of thousands of legal experts working across two and a half decades through some 15 convention sessions and regimes that are persistently fluid under general International Law, the Court stands on the cusp of making a mockery of not just the UNCLOS, but International Law in general.
Maritime Rights Arising from Various Features in the S. China Sea
Philippines’ next most important set of claims include a list of assertions that various land and maritime features in the S. China Sea (i.e., Scarborough Shoal, Mischief Reef, Second Thomas Shoal, Subi Reef, Johnson Reef, etc.) do not generate maritime rights. China insists that Article 298 absolves China of the duty to participate in arbitration relating to sea boundary delimitations between states with opposing or adjacent coasts.
First, the Court proclaimed that since the Philippines had explicitly asked the Court not to demarcate boundaries by coordinates, the case is not about “sea boundary delimitations.”
But as Justice Antonio T. Carpio of the Philippines (one of the most vocal critics of China’s “9-dashed” line) has declared before: the current case is so important for the Philippines because “80% of its exclusive economic zone and 100% of its extended continental shelf” in the S. China Sea is at stake.
The ultimate goal is for the Court to pronounce that China is entitled only to rights arising from its mainland coasts and Hainan Island. But short of that, the more land features Philippines can eliminate as capable of generating maritime rights, the harder it would be China to justify its “9-dashed” line.
If there is ever a dispute about maritime boundary delimitation, this is it!
Second, the Court insisted that it had the authority at least to take a tentative look at, based on its assessment of Article 121, whether China is justified in making overlapping claims from territories in the S. China Sea in the first place.
Article 121, however, is notoriously known for its ambiguities.
Some jurists have suggested that the defining characteristic whether maritime territories generate maritime rights under the Article hinges on whether they “can sustain human habitation or economic life of their own.”
But others have pointed out that Article 121 only stipulates that “rocks which cannot sustain human habitation or economic life of their own” cannot generate maritime rights.
Without more, and without defining what “rocks” are, Article 121 actually leaves it open-ended whether human habitability and economic viability are either sufficient or even necessary when applied to other UNCLOS regimes such as “islands” and “low-tide elevations.”
It might at first seem perplexing why so crucial a passage, only some 80 words long, could be written in such a cryptic and ambiguous manner. As it turns out, because the UNCLOS was drafted through a consensual process and ratified as a package – with no room for signatories to make individual reservations – the drafters of the UNCLOS inevitably resorted to ambiguous languages when irreconcilable differences arose. Article 121 is one of many such passages.
To appreciate just how open-ended Article 121 actually is, consider how the Court might assess the condition of human habitability and economic viability in the S. China Sea.
Would the court require actual historic populations and historic economic activities in assessing human habitability and economic viability? If so, would it accept historic but seasonal fishing populations to support human habitability?
Would it accept historic records of continual, regular fishing and activities to support economic viability? Finally, must “islands” or “rocks” “sustain human habitation or economic life of their own” individually or can an archipelago do so in the aggregate?
These are not just idle questions. China has always viewed the hundreds of features in the S. China Sea in large historically-cognizant units such as XiSha (the Paracels), DongSha (the Pratas), ZhongSha, and NanSha (the Spratlys).
If history is consistently ignored, China might question: where would the Court draw the line regarding new technologies. Can deployment of new technologies such as desalination technology and new mining and oil extraction techniques fundamentally change the meaning of human habitability and economic viability under Article 121?
Conclusion
For China, the worst part about the Court’s recent jurisdiction decision may be the Court’s trivialization of the parties’ duties to negotiate.
China has called the current proceedings an “abuse of process” in part also because the Philippines has steadfastly refused to negotiate any of the issues being arbitrated substantively with China, despite signing high-profile agreements promising to do so.
The Court found it sufficient that Philippines tried to push forward – albeit unsuccessfully – for China and other claimants to negotiate all disputes multilaterally.
The S. China Sea has a complicated geography and history. The balance embodied in the provisions of Part XV (which includes Article 298) has been a critical factor in the decision of many States to ratify the UNCLOS. It is difficult to see what positive role the Court can play in injecting itself into the complex web of disputes.
It has been said many times: International Law is about articulating rules and regimes under which a unanimous – or very near unanimous – number of sovereigns feel obliged to be constrained, even if doing so can go against their interests some of the time, because such regimes are deemed essential for the good of all.
It is not about seeking the wisdom of a few wise men to pronounce “laws” or dictate resolutions. That truism cannot be more fitting than here in the S. China Sea.
Author: Allen Yu is Adjunct fellow at the Chunqiu Institute for Developmental and Strategic Studies, Intellectual Property Attorney in Silicon Valley.